Ahlborn v. Dorn

STURTEVANT, J.

Johanna F. Ahlborn commenced an action to obtain a decree revoking an order theretofore made admitting to probate a document purporting to be the last will and testament of her father Gustavus W. Dorn, deceased. The respondent, Sadie P. Dorn, as executrix and as sole devisee, filed her answer and the case was tried before the trial court sitting without a jury. The judgment went for the defendant and the contestant has appealed under section 953a of the Code of Civil Procedure. The case was before the supreme court on a former appeal.

(Estate of Dorn,

190 Cal. 343 [212 Pac. 206].) After the ruling on that appeal the proceedings that are under attack on this appeal were had.

The appellant complains because the trial court did not grant her application for a trial by jury. The respondent replies that this proceeding was commenced pursuant to the provisions of section 1360 of the Code of Civil Procedure, and not under the provisions of section 1312 of that code. As to the latter proceeding the statute expressly grants the right of a trial by jury. As to the former proceeding the statute does not expressly grant the right of a trial by jury, ■ but it contains language from which it may properly be inferred that the trial court may try such a proceeding either with or without a jury. No question is presented by the record but what the appellant in due time and in proper form demanded a trial by jury. However, as the statute does not expressly grant the right to a jury trial the con-'

[415]

testant may not complain because she was denied a jury trial.

(Estate of Dolbeer,

153 Cal. 652, 657 [15 Ann. Cas. 207, 96 Pac. 266].)

The appellant then takes the position that if she is incorrect in her first contention that the right to a jury trial was discretionary, then it was prejudicial error for the trial court to exercise its discretion against her except for cause. We think this contention is also without merit, but assuming for the sake of argument that the principle contended for is sound, nevertheless the answer is to be found in the record. The vast majority of the issues tendered by the appellant were equitable issues. The burden of her case rested on the assertion of many facts alleged by her charging that undue influence was exercised by the defendant over the decedent. Such issues are ordinarily presented only in cases of equity, and when presented in an action in equity it is discretionary with the trial court whether it calls a jury or refuses to call a jury. (Code Civ. Proc., sec. 592.)